United States v. Solis-Jordan, Jose ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3171
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE SOLIS JORDAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 814--Blanche M. Manning, Judge.
Argued April 13, 2000--Decided August 17, 2000
Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.
and DIANE P. WOOD, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. The ten
issues on appeal range from the voluntariness of
the defendant’s confession to "colonialism."
Except for the defendant’s assertion that, as a
colonial power, the courts of this country lack
jurisdiction to try a citizen of Puerto Rico who
has been charged with four related federal crimes
committed in this country, there is nothing
unusual about the other issues except for the
context in which they arise. The defendant-
appellant, Dr. Jose Solis Jordan ("Solis"), is a
professor of educational philosophy at the
University of Puerto Rico, San Juan, Puerto Rico,
but was residing in Chicago, Illinois at the time
of the alleged offenses. He was charged for his
role in the bombing of a military recruitment
center in Chicago, with one count of conspiracy
to commit offenses against the United States in
violation of 18 U.S.C. sec. 371, two counts of
attempted destruction of government property in
violation of 18 U.S.C. sec. 844(f), and one count
of illegal possession of explosives in violation
of 26 U.S.C. sec. 5861(d).
The defendant was found guilty on all counts by
a jury on July 13, 1999. Before examining the
specific issues, we will set them in an
evidentiary context. The defendant argues, among
other things, that the evidence was insufficient
to prove his involvement.
I. BACKGROUND
The story begins in 1992 when Jose Lopez, the
head of Chicago’s Puerto Rican Cultural Center
("PRCC"), asked Rafael Marrero to form a
clandestine political organization advocating
independence for Puerto Rico from the United
States to be accomplished, if necessary, by
violent means. That organization came to be known
as the Frente Revolucionario Boricua/1 ("FRB").
Beginning in 1988, Marrero worked at the Puerto
Rican Alternative High School in Chicago. He had
joined the Movimiento de Liberacion Nacional/2
("MLN") which was already advocating Puerto Rican
independence. Marrero was a member of MLN’s
propaganda endeavors under Lopez. The objectives
of MLN were to promote Puerto Rico’s independence
from the United States, but also to secure the
release by the United States of individuals
referred to as "political prisoners." The
"political prisoners" were those individuals who
had been convicted in federal court of acts of
violence against the United States government.
Their convictions, among other things, were for
armed robbery, attempted kidnapping, and bombing
of government facilities, all claimed to be an
effort to gain independence for Puerto Rico.
According to Marrero, he and Lopez began
discussing the use of violence in their political
efforts. Lopez told Marrero that an "experiment"
had been approved at the highest levels of the
MLN to "test the waters" with violence to see if
it would cause a positive reaction in favor of
the "political prisoners." The target to be
chosen would be a military, government, or
financial institution. Lopez instructed Marrero
to contact Dr. Solis.
Marrero had met Dr. Solis in 1989 at an MLN-
sponsored protest march in New York. They became
better acquainted when Dr. Solis moved to Chicago
in 1991. Lopez told Marrero that Dr. Solis could
be trusted. Dr. Solis had pressed Lopez on the
use of violence to achieve Puerto Rican
independence, inquiring why violence had not been
used previously. Marrero and Dr. Solis, according
to Marrero’s testimony, began to discuss
political targets, with Dr. Solis suggesting the
use of a bomb. Recruiting others to help was
discussed. Dr. Solis advised that the FRB’s
membership should not exceed five in order to
avoid suspicion. Dr. Solis recommended his wife
be selected as one of the five, but Marrero
instead recommended two others as recruits,
Edward Brooks and Diana Vasquez, both supporters
of the Puerto Rican independence movement. Brooks
was already acquainted with Dr. Solis as they had
worked together on the radio to raise public
awareness of the Puerto Rican "political
prisoners" and Puerto Rican independence. Brooks
later testified at trial that the FRB was to plan
for some type of violent and illegal act.
In the spring of 1992, the FRB had its first
meeting. Marrero explained the FRB’s purpose. Dr.
Solis emphasized secrecy. The meetings continued
from time to time. Dr. Solis demonstrated
technical knowledge about bomb construction and
became the group’s instructor. He provided
manuals and other materials along with
illustrations to explain the bomb manufacturing
process. Dr. Solis made some small test bombs of
different kinds from different materials, being
careful not to leave fingerprints on the parts.
Marrero testified that Dr. Solis had constructed
a pipe bomb which he tested in a Chicago-area
forest preserve. Based on Dr. Solis’s knowledge
and experiments, he recommended to the group that
a time-delay pipe bomb be made and used.
Marrero testified that the plans for the actual
bombing then proceeded. The date of July 25,
1992, was first chosen because it was the
anniversary of the initial landing of United
States troops in Puerto Rico, but that date came
and went. October 12, 1992 was then chosen
because it was the 500th anniversary of
Columbus’s landing in this hemisphere. Specific
bombing sites were discussed, including the
Dirksen Federal Building (which houses this
court), but it was considered too difficult. The
Citibank building in Chicago was then surveilled
as a possible target. It was claimed the bank had
taken advantage of the Puerto Rican people./3
Plans for the bank site advanced to the point
where Dr. Solis sketched the bank building and
drafted a "communique."/4 The communique was to
be left at the bomb site so the public would know
that the bombing was in support of Puerto Rican
independence. However, that plan was abandoned as
the group broke ranks. Brooks withdrew from the
FRB both because he was under pressure from his
girlfriend and because he was not personally
enthusiastic about the use of violence. After
Brooks’s departure, the others decided they
should continue anyway, but with a new target. It
was Dr. Solis, Marrero testified, who suggested
the new target, a particular military recruiting
office in Chicago. The basis for the
recommendation of Dr. Solis was that the
recruiting station was secluded and had no
security cameras. The group’s bombing plans then
went ahead, concentrating on the recruiting
station.
With the planning and testing complete, Dr.
Solis, Marrero, and Vasquez prepared for the
actual bombing. The new date was to be December
10, 1992, International Human Rights Day. After
surveilling the recruiting station, they decided
to place one pipe bomb in front of the recruiting
station and another under a government car at the
site. The bombs would be placed late at night so
they would detonate early in the morning. Dr.
Solis would do the driving and Marrero and
Vasquez would plant the bombs and leave the
communique. This routine was rehearsed several
times. The communique to be left at the site was
drafted by Dr. Solis and Marrero. Marrero and Dr.
Solis constructed the two bombs at Dr. Solis’s
home using propane tanks, pipes, gun powder,
clocks, and other materials.
On the night of December 9, 1992, Dr. Solis
picked up Marrero and returned to Dr. Solis’s
home for the bombs, then picked up Vasquez at her
home. Riding in the back seat, Marrero placed the
battery caps on the devices to activate them.
Then, however, he suffered a change of heart and
began attempting to disarm the bombs by removing
the battery caps. Upon arrival at the recruiting
station, Dr. Solis waited in his car while
Marrero placed one bomb in front of the
recruiting station and Vasquez placed the other
bomb under a nearby government car, all as
planned. Two communiques were posted nearby. Dr.
Solis, Marrero, and Vasquez then drove away,
dropping Vasquez at home. Dr. Solis placed an
anonymous phone call so the FRB would get
appropriate credit for the bombing. He also sent
a copy of the communique to the PRCC to be
forwarded to the "political prisoners." There
must have been great disappointment the next
morning, however, considering all their planning
and preparation. Although it damaged the
government car, the bomb only burned without
fully exploding. The other bomb placed in front
of the recruiting station was disarmed by a
police officer who arrived at the scene.
Dr. Solis’s response to this evidence, which he
claimed to be insufficient to prove his
participation, is succinctly summarized in his
brief.
Jose Solis Jordan did not destroy government
property. He did not possess an explosive device.
He did not conspire with Rafael Marrero to set
devices by an army recruiting center. Dr. Solis
is a scholar, an intellectual and a man of
integrity.
Appellant’s Brief at 32.
We shall interrupt the story at this time to
take up Solis’s claim of insufficiency of the
evidence, having just set out the pertinent
facts, and will then proceed to examine what
occurred after the bombing and the remaining nine
issues.
Our standard of review does not require that we
ignore the government’s evidence and resolve all
credibility issues and inferences in favor of the
defendant. Under our standard of review, we will
"affirm the conviction so long as any rational
trier of fact could have found the defendant to
have committed the essential elements of the
crime." United States v. Masten, 170 F.3d 790,
794 (7th Cir. 1999) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). In United States v.
McVeigh, the Murrah Federal Building bombing case
in Oklahoma City, the Tenth Circuit stated the
rule, "On appeal, we review the evidence--both
direct and circumstantial, together with the
reasonable inferences to be drawn therefrom--in
the light most favorable to the government." 153
F.3d 1166, 1176 n.1 (10th Cir. 1998), cert.
denied, 526 U.S. 1007 (1999) (citing United
States v. Copus, 110 F.3d 1529, 1534 (10th Cir.
1997)). Even without such a high hurdle for a
convicted defendant to clear, there can be little
doubt that the evidence of Dr. Solis’s guilt,
which speaks for itself, is more than sufficient
and deserves no further comment. We reserve for
the moment, however, the other issues raised by
Dr. Solis relating to the evidence.
We now return briefly to the factual
developments. Over two years after the unsolved
bombing, Marrero agreed to cooperate with the
FBI, not only in this case but in others. In the
meantime, Dr. Solis had moved back to Puerto Rico
with his wife, Martha Gonzales. Marrero, now
cooperating with the government, met Dr. Solis
and his wife in a San Juan restaurant and
covertly tape recorded their dinner conversation.
Marrero advised them that the FBI had been making
some inquiries. (Those tape recordings are a
separate issue which will be discussed later.)
There was some discussion of the applicable
statute of limitations for murder, so it was a
serious "bombing" discussion. There was also
interest expressed about any reactions of the
"political prisoners." On an early morning in
November of 1997, Dr. Solis was arrested by FBI
agents at his home in Puerto Rico and later
transported to Chicago for trial./5
Other pertinent evidence will be discussed in
relation to the particular issues.
II. ANALYSIS OF THE ISSUES
A. Alleged Request for an Attorney
After his arrest in Puerto Rico, Dr. Solis
signed a waiver of his Miranda rights and
substantially admitted his participation in the
bombing plot as recited above. Dr. Solis now
maintains that, because he repeatedly requested
an attorney prior to and during his
interrogation, his confession was not voluntary
and should have been suppressed. "[T]he ultimate
question of whether a confession is voluntary is
a matter of law that must be reviewed de novo in
this court. Nevertheless . . . the determination
of the historical facts of the case are the
proper domain of the trial court and [ ] our
review of its finding in that regard will be for
clear error." United States v. D.F., 115 F.3d
413, 419 (7th Cir. 1997) (footnote omitted).
Dr. Solis’s admissions after his arrest
generally covered his initial contacts with his
associates, the construction of the bombs, and
his role in the actual bombing, and were set
forth in an FBI report. Dr. Solis and his wife
Martha, however, testified otherwise at his
trial. She, nevertheless, conceded they both were
ardent supporters of Puerto Rican independence
and the "political prisoners." She also admitted
that her husband believed in the right to use
violence against the United States. During a
difficult cross-examination, when it appeared
that Gonzales was being impeached, she became
evasive and defensive of her husband. Dr. Solis,
as we have mentioned, denied any complicity.
It was claimed that Dr. Solis requested counsel
at the time of his arrest, but the testimony
varied considerably. Dr. Solis testified he had
asked his wife in Spanish to call a lawyer for
him as he was being arrested and that, also in
Spanish, he told the agents as he was being taken
away that he wanted to see an attorney right
away. The agents present during the arrest, most
of whom were Spanish-speaking, denied having
heard Dr. Solis give such an instruction to his
wife, or make any request for an attorney in
either Spanish or English. After his arrest, Dr.
Solis was taken to FBI headquarters in San Juan
where he was photographed and fingerprinted. This
process for a major case took about one-and-a-
half to two hours. An agent who had been with Dr.
Solis from the time of his arrest through the
booking process, described Dr. Solis as "very
cooperative, very friendly, relaxed," and cordial
all day. Dr. Solis, the agent testified, spoke
only in English and did not ask for an attorney.
Following the booking process, three government
agents began an interview with Dr. Solis at about
9:30 a.m. The agents explained to Dr. Solis why
he had been arrested and informed him of his
rights, with one of them reading his Miranda
rights to him using the FBI’s standard "Advice of
Rights." Dr. Solis was then asked to read the
rights statement form for himself, which he did.
After that, one of the agents testified Dr. Solis
signed the form, which stated, "At this time, I
am willing to answer questions without a lawyer
present." The two other agents signed the form as
witnesses. Dr. Solis then proceeded to relate
many of the facts about his role in the bombing.
At about 11:15 a.m., the agents learned a lawyer
named Rafael Anglada had arrived at FBI
headquarters who advised them he was Dr. Solis’s
lawyer. The agents asked Dr. Solis if he had ever
heard of Anglada. They testified that Dr. Solis
responded he had never heard the name before,
that he was not his attorney, that Anglada did
not represent him, that he did not wish to speak
to Anglada, and that he did not have a lawyer.
Although the agents testified that Dr. Solis had
not asked for a lawyer at any time, shortly after
the inquiry from Anglada, the interview was
terminated and Dr. Solis was taken to Pretrial
Services.
Before trial, Dr. Solis filed a motion to
suppress his incriminating post-arrest
statements, and the court set his motion for
hearing. Dr. Solis testified that he had
requested an attorney on numerous occasions
during the arrest process. However, all eight FBI
agents, most of whom spoke both English and
Spanish, who had any substantial contact with Dr.
Solis at that time, testified that Dr. Solis
never asked for a lawyer. At the conclusion of
the motion hearing during which Dr. Solis
testified, the district judge denied the motion
and specifically found that Dr. Solis had not
requested counsel. Dr. Solis admitted signing the
waiver form and does not claim he did not
understand it. The district court, after noting
the educational background and achievements of
Dr. Solis, found that Dr. Solis had understood
what he was doing. A mistake about the time of
signing was corrected and initialed on the form
by Dr. Solis. Dr. Solis maintains that the
initials were not made by him and that the time
difference was critical to show the FBI could not
have had time to obtain his lengthy confession.
He argues that the agents fabricated the change
to make their story of the confession more
believable. The alleged time difference was not
a sufficient basis for Dr. Solis’s counsel to
impeach the agents.
This court does not in the usual circumstances
undertake to make credibility findings, as that
is better left to the fact finder, be it judge or
jury. In any event, there is absolutely not the
slightest basis in this case for this court to
overturn the district court’s credibility
findings.
B. Venue
Dr. Solis objected to conducting his trial in
the United States instead of Puerto Rico, where
he was working and living with his family at the
time of his arrest. He made the necessary motions
pursuant to the Federal Rules of Criminal
Procedure 21(a) and (b). Under subsection (a) of
Rule 21, transfer to another district can be
ordered "if the court is satisfied that there
exists in the district where the prosecution is
pending so great a prejudice against the
defendant that the defendant cannot obtain a fair
and impartial trial at any place fixed by law for
holding court in that district." In support of
the motion, defense counsel argued that negative
pretrial publicity in the local press and
existing prejudices against Puerto Ricans in
general and against those who support Puerto
Rico’s independence could be obviated by transfer
to Puerto Rico. In Puerto Rico, it was argued, a
bilingual Puerto Rican jury could better judge
the case which was anticipated would involve
disputes about language translations, as in fact
it did. It was further argued that a Puerto Rican
jury would be free of the prejudice and
discrimination against Puerto Ricans. It was also
claimed that a Puerto Rican jury could better
"judge the case in the context of a history of
political persecution and fabricated charges
against independentistas."/6 The government
defends the court’s ruling denying the venue
transfer on the basis that the alleged crimes
were committed in Chicago, not Puerto Rico, and
that most of the witnesses would be from Chicago.
It was explained in the district court that Dr.
Solis was not moving separately for transfer
under Rule 21(a) on the grounds of pretrial
publicity, but wanted the pretrial publicity to
be weighed with his Rule 21(b)/7 arguments. In
fact, as the district court noted, Dr. Solis
conceded that the press reports referenced by him
did not entitle him to relief under Rule 21(a).
The government claims the defendant, therefore,
waived his Rule 21(a) motion. However, we will
consider his Rule 21(a) and (b) motions together.
In behalf of his 21(b) motion, the defendant
claims that in denying his motions, the district
court failed to consider the factors set forth in
Platt v. Minnesota Mining & Mfg. Co., 376 U.S.
240, 244-45 (1964). Those factors range broadly
from the location of the defendant and possible
witnesses, to disruption of the defendant’s
business unless the case is transferred, to the
expenses which might be incurred by the parties,
the location of counsel, and accessibility of the
place of trial, to the docket conditions in the
districts involved as well as other special
considerations. Id. Those factors which could
realistically affect the decision in this case
were fully considered by the district court. The
government concedes, however, there were factors
on both sides of the issue. The court
acknowledged that Dr. Solis and his family
resided in Puerto Rico at the time of trial and
that a Chicago trial would "impose extreme
economic, emotional and logistic hardship on the
defendant and his entire family." The court also
noted that while the defendant "posits" that many
witnesses will be Puerto Rican, Dr. Solis failed
to specify who the Puerto Rican witnesses would
be and what their testimony would relate to. The
court took note of the fact that, because Dr.
Solis’s motion for additional counsel was granted
by the court, he now had both a Puerto Rican
attorney and a Chicago attorney, alleviating
problems Dr. Solis raised concerning language and
knowledge of Puerto Rico. Dr. Solis’s Puerto
Rican counsel and his Chicago counsel both
represented Dr. Solis at trial and argued this
appeal. His Puerto Rican counsel was not the same
counsel who appeared at the time of Dr. Solis’s
arrest in Puerto Rico claiming to be his
attorney.
Our standard of review for this issue is for an
abuse of discretion. United States v. Robinson,
20 F.3d 270, 275 (7th Cir. 1994). This court
observed that the consideration of a Rule 21(b)
motion "is one of those areas in which the
question for the court of appeals is whether the
discretion granted to the district court has been
exercised. If it has been, it will be almost
impossible to show that it has been abused . . .
." Matter of Balsimo, 68 F.3d 185, 187 (7th Cir.
1995). We cannot say, considering all the
arguments advanced, that the district judge
abused her discretion by requiring the trial to
be held in the district where the alleged crimes
were committed. Venue is not the defendant’s
choice to be determined on the basis of where he
believes a jury might be more sympathetic to his
political views. The district judge considered
what needed to be considered and, after weighing
those factors, kept the trial in Chicago. We see
no abuse of discretion.
C. Peremptory Challenges
Next, the defendant raises a jury issue
claiming the government was permitted to
peremptorily excuse two Latino venirepersons
without sufficient justification./8 That
justification is needed to show that the
government’s peremptory challenges are not
motivated by purposeful discrimination, and in
effect were not pretextual. Batson v. Kentucky,
476 U.S. 79, 100 (1986).
Contrary to what the defendant argues by
relying on Mahaffey v. Page, 162 F.3d 481, 484
(7th Cir. 1998), our standard of review is not de
novo. The standard of review remains as set forth
in United States v. Williams, 934 F.2d 847, 849
(7th Cir. 1991), which states that the appellate
court "will only overturn the trial court’s
determination that a prosecutor’s use of
peremptory challenges was not motivated by
purposeful discrimination if that determination
is clearly erroneous." Mahaffey applies to a
different Batson situation. Normally, a Batson
review involves three stages: (1) a prima facie
showing of discrimination must be made by the
defendant, (2) with a prima facie showing, the
prosecution must present a race-neutral
explanation for striking the jurors, and (3) the
trial court must decide whether the prosecution’s
reasons are pretextual and whether the defendant
has proven purposeful discrimination. Mahaffey,
162 F.3d at 482-83 (citing Batson, 476 U.S. at
96-98). In Mahaffey, the court never proceeded
beyond the prima facie determination; therefore,
because the question of whether a prima facie
case has been shown presents mixed questions of
fact and law, a de novo review must be conducted.
Id. at 483, 484. The court in Mahaffey held that
because Mahaffey made a prima facie showing, the
State was required to present race-neutral
explanations. Id. at 486. The state judgment in
that habeas corpus case was therefore reversed
and remanded for a new Batson hearing to allow
the State to advance any race-neutral
explanations for the challenged strikes. Id.
In the present case, however, the government
did advance its race-neutral explanations at the
time the issue was raised. The trial court
accepted the government’s explanations. Two male
Latino jurors had been peremptorily excused. The
first juror was excused, the government
explained, because the particular juror’s wife
taught Spanish at DePaul University in Chicago
where Dr. Solis and some of his possible
character witnesses had also taught. It was also
claimed that at DePaul there was a "hotbed of
dissent regarding the defendant."
One of the government’s objections to this
juror was that he was fluent in Spanish, but had
difficulty with English. The government expressed
the concern that the juror might refuse to defer
to the government’s translations of what it was
that Dr. Solis may have been heard to say on the
controversial tapes (problems which did develop
and will be discussed later). The district court
did not accept this explanation, because the
government failed to question the Spanish-
speaking venirepersons about their willingness to
defer to expert witnesses’ translations of the
tape. We agree with the district court on this
particular point. Under the plurality opinion
authored by Justice Kennedy in Hernandez v. New
York, 500 U.S. 352 (1991), it appears to us that
the key question is whether the prospective juror
would be willing to follow the court’s
instructions and thus be willing to defer to the
authorized translation. The plurality went out of
its way to avoid suggesting that bilingualism
itself is a race-neutral ground for striking a
juror. Id. at 361. Thus, the government’s failure
to ask how the jurors would react to the
testimony was an important omission.
As to this juror, the district court found,
however, that the juror’s wife taught Spanish at
DePaul and that, further, Dr. Solis’s case was
being hotly debated in her department. The court
also noted that this juror had had some bad
experiences with the military in Argentina.
Relying on our Williams standard of review, we
see no peremptory challenge Batson error. We have
in other cases approved reasons given by the
prosecution that included merely "intuitive
assumptions that are not fairly quantifiable."
Williams, 934 F.2d at 850 (quoting United States
v. Briscoe, 896 F.2d 1476, 1489 (7th Cir. 1990)).
In Williams, this court found that the
explanations for challenge were credible and,
given the deference due the trial court, could
not say, based on the record, that the ruling was
clearly erroneous. Id. The same is true in the
present case. Based on the record and in view of
the government’s explanations, we have no basis
to hold that the district court’s decision was
clearly erroneous. That some of the anticipated
government testimony, which might have caused
difficulty for this juror, never materialized, is
irrelevant in that pretrial setting.
The second juror peremptorily excused by the
government was also fluent in Spanish but, again,
as with the first juror, this was not the court’s
reason for finding that the peremptory challenge
was not tainted. The second juror had done
campaign work in two Chicago wards, working for
the campaigns of a current alderman and a
previous alderman (who at the time of trial was
a congressman), both of whom were Hispanic. The
government claimed that these two politicians had
not only spoken out publicly on numerous
occasions against Marrero, who was to be a
principal government witness, but had attempted
to have Marrero removed from his job. The
government also stated that the defense was
planning to question Marrero about the attempt to
have him removed from his job, which involved one
of the politicians. In addition, tapes were to be
submitted to the jury on which Marrero made
derogatory comments about these two men. The two
aldermen had also been disparagingly depicted as
"Spice Girls" in a publication associated with
Marrero, to which he had contributed articles.
Applying our Williams standard of review in
these circumstances, we find no error in the
ruling of the district court that both of the
peremptory challenges were based on individual
bias and not race related. Peremptory challenges
have become limited in their use in certain
circumstances, but have not been restricted to
the point of being equated to challenges for
cause. The Supreme Court in Hernandez noted that
deference is given to the trial court findings on
the issue of discriminatory intent because "the
finding largely will turn on evaluation of
credibility." 500 U.S. at 365 (internal
quotations and citation omitted). The defense
arguments about these jurors are not sufficient
under our standard of review to fairly
characterize the government challenges as race-
based challenges. We find no error.
D. Tape Recordings
Dr. Solis next objects that the tape recording
of his and his wife’s conversation with Marrero
about the bombing and events both before and
after, which was made in a restaurant in Puerto
Rico on June 28, 1997, should not have been
allowed into evidence because it is inaudible.
After Dr. Solis was indicted, the government
provided him with a copy of the pertinent parts
of the controversial tape, together with a
transcript in English to serve as an aid to the
jury. The defense notified the government in
advance of trial that it would dispute the
transcript. In response, the government hired an
independent court interpreter, Roberto Mendoza,
to prepare another transcript of the tape. This
new transcript was also provided to the defense.
The defense then requested a transcript of the
entire tape which would reflect the Spanish
language on the tape instead of the English
translation of the conversations in Spanish.
There was not time to prepare the transcript of
the whole tape, and most of the tape was
irrelevant anyway. The parties endeavored to
agree on a translation of about four minutes of
the tape mutually considered to be relevant. The
interpreter then prepared transcripts of the
relevant portion both in Spanish and in English.
Defense counsel made suggestions about the
translation, some of which were incorporated into
the new transcripts. However, the consensus
effort failed and the defense moved to suppress
the tapes as inaudible.
In considering the problem with the tapes, the
district court judge listened to the tapes in
camera, as we have, and found the tapes
sufficiently audible, holding that the tapes
would be admitted upon government authentication.
Both sides, it was ruled, would be permitted to
present their own experts and translations and
transcripts. The jury was to be allowed to rely
on the transcript it found to be most credible in
correctly reflecting the conversations. There
could be no fairer way for the district court to
present this tape problem for jury consideration.
However, during opening arguments, defense
counsel suggested to the jury that the government
was only going to produce "a snippet" of the
conversation, the inference being the government
was hiding something or taking the comments out
of context. In response, the government offered
the transcript of the full tape.
At trial the government called two certified
court interpreters, Mendoza and Gloria Domenech,
who both testified that the transcript accurately
reflected the conversations on the tape. Any
inaudible portions, it was explained, were only
a matter of a few seconds or fractions of
seconds. Although the defendant produced no
expert or any other transcript in rebuttal, the
burden of proof remained with the government. We
held in United States v. Powers, 75 F.3d 335, 341
(7th Cir. 1996) (internal quotations and citation
omitted), "A recording that is only partly
unintelligible is admissible unless the
unintelligible portions are so substantial as to
render the recording as a whole untrustworthy."
The decision whether to admit a recording with
some unintelligible portions is left to the
district court’s sound discretion. See id.(citation omitted). We continue to follow that
standard. United States v. Singleton, 125 F.3d
1097, 1104 (7th Cir. 1997) (holding that district
court has broad discretion in deciding whether to
allow the use of written transcripts to aid the
jury in listening to recorded conversations). If
the tape is generally audible, but only partially
inaudible, the inaudible portions may affect its
weight, a determination to be left to the jury.
United States v. Robinson, 956 F.2d 1388, 1395
(7th Cir. 1992). The tape’s admissibility,
however, is a matter for the court to decide. See
Powers, 75 F.3d at 341. Conclusory arguments made
by counsel about the tape or transcript
inaccuracies, with no indication that the verdict
was adversely affected, are not sufficient.
United States v. Fuentes-Montijo, 68 F.3d 352,
355 (9th Cir. 1995) (citing United States v. Pena-
Espinoza, 47 F.3d 356, 360 (9th Cir. 1995)). We
find no clear abuse of discretion by the district
court.
E. Jury Instruction on Tape
Recording/Transcripts
The previous section does not dispose of all
the tape recording issues as the defense also
objects to the district court’s jury instruction
regarding the tape and transcripts. Two Seventh
Circuit Federal Criminal Jury Instructions are at
issue, sec. 3.17--Recordings/Transcripts of
Recordings,/9 and sec. 3.18--Foreign Language
Recordings/Transcripts in English./10
Defendant requested the two instructions be given
separately and in full. The government presented,
and the district court accepted, a combination
instruction, with sec. 3.18 given in full but
combined with sec. 3.17, omitting only
duplicative language of sec. 3.17.
Among the exhibits admitted during the trial
were recordings that contained conversations that
took place partially in the Spanish language. You
were also provided with English transcripts of
those conversations. The transcripts were
provided to you so that you could consider the
content of the conversations of [sic] the
recordings.
Whether the transcripts contain accurate
translations of the Spanish language portions of
the recordings in whole or in part is for you to
decide. In considering whether a transcript
accurately describes the meaning of a
conversation, you should consider the testimony
presented to you regarding how and by whom the
transcript was made. You may consider the
knowledge, training, and experience of the
translator, as well as the nature of the
conversation and the reasonableness of the
translation in light of all the evidence in the
case.
With respect to the Spanish language portions
of the recordings, you should not rely in any way
on any knowledge you may have of the Spanish
language spoken on the recording. Your
consideration of the transcripts should be based
on the evidence introduced in the trial.
With respect to the English language portion of
the recordings, the tape recordings themselves
are the evidence of what was and was not recorded
on the tapes. With respect to the English
portions, English language portions of the
recordings, the transcripts were provided to you
solely as a listening aid. If from your hearing
of the English portion of a particular recording
you perceive any variation between the cassette
and the corresponding transcript, you will be
guided solely by the cassette and not by the
transcript.
Dr. Solis maintains that this jury instruction
not only directs the jury to consider the
Spanish-language translations as the evidence,
not the tape, but that having the written
translation sent into the jury room as evidence
unduly emphasizes that portion of the tape.
Effectively combining multiple instructions into
one instruction is an accepted practice. United
States v. Ashley, 54 F.3d 311, 315 (7th Cir.
1995). We do not see that the combination of
instructions misstated the law, omitted any
relevant part of the law, or unduly emphasized
any part of the evidence. We have held that if
the instructions in their entirety are fair,
accurate, and sufficient for the jury to have an
understanding of the issues to be decided and
includes a fair and accurate statement of the
law, we will accept the judge’s instruction
determinations. United States v. Lanzotti, 205
F.3d 951, 956 (7th Cir. 2000). We do not find that
the combined instruction misled the jury and
believe the instruction provided a clear
understanding of the issues and the jury’s duty
to determine those issues. See id. And so it is
in this case, we find no error in the judge’s
exercise of discretion.
F. Evidence of Government Payments to Marrero
Dr. Solis seeks a new trial on the basis that
government counsel in his opening statements
advised the jury of the FBI’s payments made to
Marrero, which were to cover his relocation
costs, lost wages, and for Marrero’s help in the
investigation. Marrero testified that several
events occurred which were sufficient for Marrero
to believe his life was in danger. Given the
factual circumstances of this case, that was not
an unreasonable concern. The government spent
about $119,000 in relation to Marrero, which the
evidence was expected to show, and did show.
Evidentiary rulings of the trial court will be
reversed only if there has been a clear abuse of
discretion, such that no reasonable person could
agree with the district court’s ruling. United
States v. Adames, 56 F.3d 737, 746 (7th Cir. 1995)
(citing United States v. Briscoe, 896 F.2d 1476,
1490 (7th Cir. 1990)). The defense argument seems
to be that the government’s payment information
in its opening statement was premature even
though it could be explored in direct and on
cross-examination. Defense counsel had indicated
in advance that he intended to tell the jury in
his opening statement that "[Marrero] was paid
over $100,000 for his testimony." That payment
information, of course, could have a bearing on
Marrero’s credibility. Once the defense had
indicated it would make a statement about Marrero
and the FBI money, the government was entitled to
address the issue prior to the defense. See
United States v. Holly, 167 F.3d 393, 395 (7th
Cir. 1999); United States v. Robinzine, 80 F.3d
246, 252 (7th Cir. 1996). Government counsel was
not required to wait for defense counsel to bring
up the payments to Marrero. That possibly could
have given the initial impression to the jury
that otherwise the government had intended to
keep that relevant payment information from the
jury.
It is somewhat difficult to understand what
defense counsel is now objecting to since, at the
time the objection was made, she advised the
district court that she "would have no objection
if the prosecution says in its opening statement
after leaving this group that Mr. Marrero felt
that his life was in danger and [he] turned to
the FBI for protection. We would have no problem
with that." Furthermore, the government attorney
agreed to the defense’s restrictions and
suggestion that he confine his remarks to the
fact that "[Marrero] felt he was threatened, and
the FBI assessed the situation and put him into
a program" for safety purposes. Those concessions
seem generally to permit what the government said
in its opening, but to which the defense now
objects. Marrero was subject to cross-examination
during trial and defense counsel had ample
opportunity to argue that Marrero was biased due
to the FBI payments. Defense counsel summed it up
in his closing argument by saying that Marrero
was "on the dole for $118,000 from the
government, and his interpretation of the tapes
is not to be truthful. We know that he would
choke on the truth. . . . Marrero cares little,
if anything, for the truth."
We see no abuse of discretion.
G. Trial Misconduct
1. "Terrorism"
The defense raises some additional questions
about the government’s trial of the case. The
defendant now claims that the government’s use of
the word "terrorism," though infrequent, and the
government’s questioning of witnesses regarding
their views about the possible violent overthrow
of the government of the United States, was
prejudicial error. We do not find that there was
any objection by defense counsel at the
time,/11 so our standard of review is for
plain error. See United States v. Hardamon, 188
F.3d 843, 849 (7th Cir. 1999). Reversal for plain
error is exercised in only the most exceptional
of circumstances. United States v. Jackson, 542
F.2d 403, 409 (7th Cir. 1976) (citation omitted).
Regardless of the applicable standard of review,
we see no error in the limited use by the
government of the word "terrorism," which is the
term generally and publically applied to charges
similar to those made against Dr. Solis. The
simple definition of terrorism found in the Oxford
American Dictionary 709 (1980) is the "use of violence
and intimidation, especially for political
purposes." That is what this is. In any event,
the jury was instructed that what the lawyers
might say is not evidence for the jury to
consider. Further, it was defense counsel who
first introduced the word "terrorist" into the
trial by inquiring during voir dire if the use of
the word "terror" or "terrorist" would unduly
influence the jury’s judgment. No prospective
juror indicated it would cause any prejudice.
We see no error in the infrequent use by the
government of the word "terrorism," particularly
in a case dealing with the attempted bombing of
a government building.
2. Puerto Rican Independence
Another aspect of the objection has to do with
the government’s questioning of witnesses about
their views as to the use of violence to protest
the United States involvement in Puerto Rico.
Again, because defense counsel never objected to
this line of questioning,/12 this issue is
reviewed for plain error. See Hardamon, 188 F.3d
at 849. Dr. Solis testified about his own views
on Puerto Rican independence and his support for
the "political prisoners" who had advocated
violence against the United States government. We
therefore find nothing improper of sufficient
consequence to have adversely affected the
fairness of the trial.
H. "Special Caution" Jury Instruction
There is an additional issue raised by the
defense about a jury instruction. The defense
proposed an accomplice or "special caution" jury
instruction/13 because the government called
Edward Brooks as a witness. Brooks had been one
of the original participants but, as we have
mentioned, he withdrew from the FRB. He did so
because he apparently had some personal objection
to the degree of violence involved and because
his girlfriend pressured him with some good
advice which he decided to follow. Brooks
testified about the FRB and others in the group
up until the time he disassociated himself in the
fall of 1992. The defense argues that the lack of
an accomplice instruction suggests Brooks was an
impartial, objective witness. The defense
maintains that even though there was no evidence
Brooks negotiated with the government for freedom
from prosecution in exchange for testifying, the
fact that he was not prosecuted cast doubt on his
credibility.
This court dealt with a similar situation in
United States v. Cook, 102 F.3d 249 (7th Cir.
1996). In that case, an informant had been paid
for cooperating with the FBI and for wearing a
wire to record conversations with the defendant.
The district court declined to give a "special
caution" instruction. The panel stated that a
separate jury instruction is not required "as a
matter of course" where there is testimony of a
paid informer, and affirmed the district court’s
decision to not give the special instruction,
holding that the use of that type of instruction
is "committed to the discretion of the district
court, which is best situated to detect and deal
with threats of unreliable testimony, and that
appellate review is deferential." Id. at 252. The
court in Cook also noted that the Seventh Circuit
had never reversed a criminal conviction for
failure to give a special instruction for an
informant’s testimony, and held that "a general
credibility instruction referring to the
possibility of bias, which coupled with cross-
examination and closing argument by counsel will
put the subject before the jury for decision."
Id. at 253.
In the present case there is no basis to find
fault with the district court’s exercise of
discretion. Brooks was not paid nor given
anything on the basis of his testimony. There was
no government agreement not to prosecute him. He
appeared at trial subject to a government
subpoena. With or without the cautionary
instruction, defense counsel cross-examined
Brooks as to his motivations for testifying and
addressed the issue in his closing argument. The
district court gave the jury the standard
instruction on witness credibility. We find no
error in the district court’s discretion in
declining to give the "special caution"
instruction.
I. Jurisdiction
The last of the ten issues Dr. Solis raises on
appeal is one of jurisdiction. As the issue is
stated in his brief: "International Law, Binding
Upon The Courts Of The United States, Deprives
The Courts Of The Colonial Power To Try Citizens
Of The Nation Subjected To Colonialism For Its
Offenses Alleged In The Indictment." Dr. Solis
maintains "[his] conviction, in defiance of
international law and the Constitution of the
United States, must be reversed." Basically, Dr.
Solis argues that the district court lacked
personal jurisdiction over him because he is a
resident of Puerto Rico.
Ordinarily, one would expect a jurisdictional
argument to be raised first, but defense counsel
recognized that the established law of this
country was contrary to his position. See United
States v. Lussier, 929 F.2d 25, 27 (7th Cir.
1991); Matta-Ballesteros v. Henman, 896 F.2d 255,
259 (7th Cir. 1990); United States v. Koliboski,
732 F.2d 1328, 1329 (7th Cir. 1984). Dr. Solis’s
attempt to argue that an international treaty
destroys the jurisdiction of the courts of this
country in itself raises a more substantial
question about the defendant’s standing to allege
a violation of international treaties. As we have
stated, "It is well established that individuals
have no standing to challenge violations of
international treaties in the absence of a
protest by the sovereigns involved." Matta-
Ballesteros, 896 F.2d at 259.
Dr. Solis and his counsel nevertheless have
provided the court with an extensive historical
and legal analysis of the claim that the district
court lacks jurisdiction. They argue that 18
U.S.C. sec. 3231 applies only to the fifty states
and is unconstitutional and illegal under
international law as applied to Puerto Rico. The
theory which they endeavor to support is that
"international law, binding upon the courts of
the United States, deprives the court of the
colonial power to try citizens of the nation
subjected to colonialism for its offenses alleged
in the indictment." The United States, it is
claimed, is the colonial power and Puerto Rico
has been subject to that colonialism dating back
to the United States occupation of Puerto Rico in
1898. Therefore, it is argued, "the status of the
United States in Puerto Rico is that of a
belligerent occupant, not the sovereign." Dr.
Solis further asserts that his prosecution
"violates the customary norms of international
law." The defense first filed a pre-trial motion
in the district court to dismiss the indictment
for lack of jurisdiction and later filed a motion
in arrest of judgment for lack of jurisdiction.
The government responded that Dr. Solis could not
invoke a treaty to assert lack of jurisdiction.
Contrary to Dr. Solis’s assertion that he is
protected by international law, well established
principles of international law make it clear
that a state/14 "has jurisdiction to prescribe
law with respect to . . . conduct that, wholly or
in substantial part, takes place within its
territory . . . ." Restatement (Third) of the Foreign
Relations Law of the United States sec. 402(1)(a) (1987).
In addition, a state is entitled to exercise
jurisdiction to adjudicate with respect to a
person if, among other things, "the person . . .
had carried on activity in the state, but only in
respect of such activity." Id. sec. 421(2)(i).
Finally, a state has jurisdiction to "employ
judicial or nonjudicial measures to . . . punish
noncompliance with its laws or regulations,
provided it has jurisdiction to prescribe . . .
." Id. sec. 431(1).
Title 18 prohibits attacks on federal facilities
located on our own territory. These laws fall
well within the boundaries of sec. 402, and are
in no way unreasonable under the limitations
placed on jurisdiction to prescribe of sec. 403
(listing relevant factors of when jurisdiction
over a person or activity is unreasonable). There
is jurisdiction to adjudicate, or personal
jurisdiction, over Dr. Solis because he undertook
the activities involved while residing in this
country. Finally, as stated in the Restatement of
Foreign Relations, because the United States has
jurisdiction to prescribe, there is clearly
jurisdiction to enforce the laws of the country
through judicial proceedings.
Dr. Solis, regardless of his political
motivation, was not selectively singled out for
prosecution because of his political views. He
may, however, now view himself as another of this
country’s "political prisoners," as he calls
them, but there was no politics involved so far
as the government is concerned, only criminal
acts contrary to federal laws which are
applicable to all. Dr. Solis even invokes the
Boston Tea Party./15 The political future of
Puerto Rico, whatever it may be, is not the issue
before this court.
III. CONCLUSION
Defense counsel have raised every conceivable
argument in behalf of their client. Much of the
defense case rests on credibility, attacking the
credibility of prosecution witnesses and
defending the credibility of defense witnesses.
In closing argument to the jury, defense counsel
said, "I am given great comfort by the thin line
of protection that stands between a lie and an
innocent man, and that thin line of protection is
you, a jury, a jury sworn to impose on the
government a burden of proof beyond a reasonable
doubt." Now, however, the defense finds fault
with the jury’s adverse determination. We find no
basis to overturn the jury’s verdict. Defense
counsel also raised other details in connection
with the issues discussed, but they are not
specifically mentioned here as we viewed them as
irrelevant or without merit.
AFFIRMED.
/1 According to Marrero, the translation is "Puerto
Rican Revolutionary Front."
/2 Again, according to Marrero, the translation is
"Puerto Rican National Liberation Movement."
/3 Marrero testified that Dr. Solis told the group
that Citibank had benefitted from its tax-exempt
status in Puerto Rico and had taken advantage of
the Puerto Rican people and was part of the
colonial problem in Puerto Rico.
/4 Defined by Marrero as "a press statement, a
declaration."
/5 Dr. Solis was not abducted in Puerto Rico and
brought to the United States for trial of a crime
committed in Puerto Rico. See United States v.
Alvarez-Machain, 504 U.S. 655 (1992).
/6 According to testimony from Martha Gonzalez at
trial, an independentista would be an ardent
supporter of Puerto Rican independence; one of
the prominent independentistas was a woman who
was in jail for a seditious conspiracy to
overthrow the United States government.
/7 Fed. R. Crim. P. 21(b) provides for transfer of
venue "for the convenience of parties and
witnesses, and in the interest of justice . . .
."
/8 One of the prospective jurors who was stricken
for cause turned out to be the aunt of two of the
Puerto Rican political prisoners and the aunt of
Marrero’s ex-wife.
/9 Seventh Circuit Federal Criminal Jury
Instructions (West 1999), sec. 3.17 reads as
follows:
You have heard recorded conversations. These
recorded conversations are proper evidence and
you may consider them, just as any other
evidence.
When the recordings were played during the
trial, you were furnished transcripts of the
recorded conversations.
The recordings are the evidence, and the
transcripts were provided to you only as a guide
to help you follow as you listen to the
recordings. The transcripts are not evidence of
what was actually said or who said it. It is up
to you to decide whether the transcripts
correctly reflect what was said and who said it.
If you noticed any difference between what you
heard on the recordings and what you read in the
transcripts, you must rely on what you heard, not
what you read. And if after careful listening,
you could not hear or understand certain parts of
the recordings, you must ignore the transcripts
as far as those parts are concerned.
/10 Seventh Circuit Federal Criminal Jury
Instructions, sec. 3.18 reads as follows:
Among the exhibits admitted during the trial
were recordings that contained conversations in
the ________ language. You were also provided
with English transcripts of those conversations.
The transcripts were provided to you [by the
government] so that you could consider the
content of the conversations on the recordings.
Whether a transcript is an accurate translation,
in whole or in part, is for you to decide. In
considering whether a transcript accurately
describes the meaning of a conversation, you
should consider the testimony presented to you
regarding how, and by whom, the transcript was
made. You may consider the knowledge, training,
and experience of the translator, as well as the
nature of the conversation and the reasonableness
of the translation in light of all the evidence
in the case. You should not rely in any way on
any knowledge you may have of the language spoken
on the recording; your consideration of the
transcripts should be based on the evidence
introduced in the trial.
/11 In its Memorandum and Order responding to Dr.
Solis’s Motion in Arrest of Judgment and Motion
for a New Trial, the district court noted,
"Solis-Jordan never objected--before, during or
after the government’s closing--to the terrorist
comments. . . . Defense counsel certainly could
[also] have objected [at sidebar], but did not,
and therefore, waived the objection."
/12 The defense did object during the government’s
cross-examination of a defense witness when the
government was asking the witness if he had been
the guest of honor at an MLN People’s Parade,
which was reported in an MLN newspaper. The
defense objected to "commie-baiting in the
courtroom," arguing the government was presenting
the annual Puerto Rican Day Parade as an MLN-
sponsored event. The court terminated that line
of questioning at that point.
/13 Seventh Circuit Federal Criminal Jury
Instructions, sec. 3.13(e) reads as follows:
You have heard testimony from __________ who:
has pleaded guilty to an offense arising out of
the same occurrence for which the defendant is
now on trial. His/her guilty plea is not to be
considered as evidence against the defendant.
You may give his/her testimony such weight as
you feel it deserves, keeping in mind that it
must be considered with caution and great care.
/14 The Restatement of Foreign Relations, sec. 201
defines a "state" as follows:
Under international law, a state is an entity
that has a defined territory and a permanent
population, under the control of its own
government, and that engages in, or has the
capacity to engage in, formal relations with
other such entities.
/15 Disguised as Indians, a group of citizens in 1773
forced their way on to some British ships docked
in Boston Harbor. The ships carried a cargo of
tea transported from England for sale in the
Colonies. The tea was dumped overboard into the
harbor and the "Indians" departed. However, no
attempt was made to blow up the ship.